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In Conversation With LSR Visiting Faculty Fellow Mitchell Berman

Mitchell Berman is a Laurance S. Rockefeller Visiting Faculty Fellow. Berman comes to the UCHV from the University of Pennsylvania, where he is the Leon Meltzer Professor of Law and holds secondary appointments in the Department of Philosophy and at the Wharton School.

Berman writes and teaches in American constitutional law, constitutional theory, philosophy of criminal law, general jurisprudence, and philosophy of sport. This year, Berman is working on a book project that explores the U.S. Constitution and the nature of law.

"Debates in constitutional theory generally appear to concern how courts should ‘interpret the constitution,’ or how they should exercise their power of judicial review," Berman explained. "Those are fine questions. But they often mask a different question that’s perhaps more fundamental. The different question is: ‘What makes up the law, or what determines the law, or what makes it the case that the law is what it is?’ This is a question about how things are, not about what some people should do.”

He offered partisan gerrymandering to illustrate, for the Supreme Court will decide a very important constitutional challenge to gerrymandering this term. “Suppose you think the Court should rule for the challengers,” Berman said. “That’s probably because you think that ‘partisan gerrymandering is unconstitutional.’ That seems like the type of judgment that could be true, though it might not be. If it’s true, what makes it true? Maybe it’s true because that’s what proper respect for popular sovereignty requires.”

“On the other hand, maybe it’s false, in part because we have a long historical tradition of permitting partisan gerrymandering,” Berman postulated. “So now the question becomes: what makes it the case that principles of popular sovereignty, or of historical practice, have the particular constitutional significance they have (whatever that might be)? Or maybe you think, as some originalists claim to, that the constitutional law is all and only what the enacted text says. What makes that so?”

“Surprisingly few constitutional theorists have addressed themselves to the question of what makes or determines or grounds our constitutional law because they have been so focused on the nearby question of what judges should do,” Berman explained. “In contrast, the question of what generally makes or determines or grounds the law of any given jurisdiction is a central occupation of philosophers of law who work in ‘general jurisprudence.’” The problem is that the dominant accounts that field has supplied don’t look terribly plausible when viewed from the vantage point of American constitutional practice.

The result, Berman concluded, is that we have almost no theories that address the question we want addressed, look plausible to constitutional scholars and lawyers, and pass philosophical muster. That’s what he’s working on this year: a theory of American constitutional law that is, at the same time, a better account of law generally. Moreover, Berman believes that legal systems are close cousins to other “artificial systems of norms” that he studies—sports and games. So his theory of American constitutional law is also, “when viewed from a certain perspective,” a theory of the rules of Major League Baseball.

Although Princeton does not have a law school, Berman has found plenty of faculty and fellows across multiple departments whose interests overlap with his—so many that he refuses to name names, objecting he’d end up omitting too many. “Everybody I’ve met is really smart, interesting, and engaged. I’m learning a ton.”

Despite his home institution’s proximity to Princeton— just an hour south on Interstate 95— Berman had not spent much time on campus before his fellowship. “Obviously, it’s a beautiful campus. I’ve been happy just wandering the grounds and exploring the buildings,” Berman said. "But it’s the people who really make it.”